SWDB & Ors v Minister for Immigration & Citizenship & Anor [2008] HCATrans 199 (23 May 2008)

Last Updated: 29 May 2008

[2008] HCATrans 199

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A45 of 2007

B e t w e e n -

SWDB, SWGB, SWHB, SWJB & SWFB

Applicants

and

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

KIRBY J
HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 23 MAY 2008, AT 10.48 AM

Copyright in the High Court of Australia
MR P.C. CHARMAN: If it please the Court, I appear for the applicant. (instructed by McDonald Steed McGrath)

MR M.J. RODER: If the Court pleases, I appear for the first respondent. (instructed by Sparke Helmore)

KIRBY J: We have a submitting appearance on behalf of the second respondent which is the Refugee Review Tribunal. Yes, Mr Charman.

MR CHARMAN: Thank you, your Honour. Your Honours, it is conceded that in relation to the test for apprehended bias there are different considerations which must take place in terms of determining whether there was an apprehension of bias. In relation to this particular matter, the leave application is based upon a special leave question as to the extent to which that test is different as a result of taking into account the personal circumstances of the decision-maker.

If I could take your Honours to page 102 of the application book, which are the reasons of her Honour Justice Branson. Towards the end of page 102 she refers to Ebner v Official Trustee and there refers to the possibility of “human frailty”. It is really in relation to this quotation from Ebner that we say has transformed, in these circumstances of an inquisitorial process, the test of apprehended bias into a test of actual bias and we say that, your Honours, for these reasons, that if we go further to pages 105 and 106 of the application book, this is particularly where her Honour dealt with some of the issues flowing from the claims made and the manner in which the Tribunal dealt with the issues.

KIRBY J: Are you not trying to over-nuance what is inevitably a matter which is one of assessment, judgment, looking at the whole matter, whether it causes a sense of disquiet about the case such that the person has not had a fair hearing? We can express that in several ways and the Court has done it in Ebner and in Johnson v Johnson, but essentially it is largely an overall impression, and you cannot nuance this by analysing the words that have been used by the Court as if they were a statute; that is not the correct way to approach the issue.

We have to look at the substance and when we do that in this case, both the magistrate and the Federal Court said that they had some anxiety about the way the Tribunal had asked questions, but that looking at it as a whole, applying the test that this Court has laid down, they did not consider that a reasonable observer would have felt that there was a bias on the part of the decision-maker. So what is wrong with that? Why is there a special leave point?

MR CHARMAN: The special leave point, with respect, your Honour, is that we certainly accept that that is the approach that should be taken, not to look at the specific information or the detail, but simply to form an impression of whether the reasonable observer would apprehend there might be a possibility of bias, and that indeed is one of the criticisms of her Honour’s reasons that is made at paragraph 11 of the applicant’s outline of contentions.

The reason we say this is a special leave point, your Honour, is that whilst the test is accepted, both pages I have referred your Honours to at pages 106 and 107 of the application book we say take the approach further than what her Honour should have in assessing - - -

KIRBY J: Well, the key passage is at the very bottom of 106, is it not? This is Justice Branson:

While it is desirable for any person taking evidence from a person who claims to have been the victim of sexual assault, including rape, to act with tact and sensitivity, the manner of, and the comments made by, the Tribunal member in this case, while regrettable, were, in my judgment, not such as to lead a reasonable person to apprehend that she might deviate from the course of deciding the case on its merits.

Now, your basic problem, it seems to me, is that both the magistrate and the judge acknowledged that there were some questions that were insensitive, but they suggested that that was because of the inexperience of the Tribunal member, and not an indication of bias. Now, that is the correct approach, that is the test that this Court has laid down, so at the most we would just be going through the facts again and seeing if you could lift “regrettable” into “unacceptable”. That really is not the role of the High Court of Australia.

MR CHARMAN: I accept that, your Honour, and if indeed that was all I was asking you to do I would accept that in its entirety. What I am asking or suggesting, your Honour, is indeed the passage your Honour has referred to goes on to say, as your Honour has indicated, that in part because of “her uncomfortableness with the need to test this allegation”, but at paragraph 23 of her Honour’s reasons at page 106, about halfway through:

I formed the impression that the Tribunal member lacked confidence and was, to some extent, uncertain as to the best way to proceed.

Now, with respect, your Honour, the point we say that is important in determining how the apprehended bias test is applied in inquisitorial proceedings is that those are not relevant factors. The factors of the personal circumstances of the Tribunal member are not relevant to a test as
to whether an independent or reasonable observer would form the impression that - - -

KIRBY J: Well, I think you are being a bit unrealistic here. What Justice Branson was saying in referring to “human frailty” is that different judges and tribunal members are human beings and they have to react to sometimes distressing or upsetting or offensive evidence. This was a case of rape and alleged involvement in prostitution, blood feud, and the suggestion is that the Tribunal member reacted with human frailty. Well, so what? Every one of us, everyone in this room and doubtless over there in Adelaide, has human frailties. There is nothing special about that.

MR CHARMAN: We are very tough here, your Honour. Your Honour, really those two paragraphs which your Honour has indicated are really the nub of the argument, that if you do not accept that that gives rise to something which suggests that she has applied a different test than what she should have, there is really not a lot more that I can do to take you to anything in the decisions. That is the basis of our submission.

KIRBY J: Yes, thank you, anything else?

MR CHARMAN: No, thank you, your Honour.

KIRBY J: Yes, thank you, Mr Charman. The Court does not require your assistance, Mr Roder.

The applicants, a husband and wife, two children and a sister of the husband, arrived in Australia from Albania and claimed refugee status. The claim was refused by the Refugee Review Tribunal. It had been based on an allegation that the husband’s sister had been engaged to marry a man whom she found had been organising prostitution in Italy. This caused the sister to break off the engagement. This, in turn, allegedly resulted in the sister being raped; led to an estrangement between the family; and was said to have resulted in a blood feud for which officials in Albania would not provide protection. The Tribunal did not accept the foregoing claims as being truthful.

The applicants allege apprehended bias on the part of the Tribunal member. The Federal Magistrate and the Federal Court of Australia (constituted by Justice Branson) both expressed misgivings about some aspects of the hearing before the Tribunal and about some of the questions that the Tribunal asked. However, each applied the correct principles stated by this Court in cases such as Johnson v Johnson [1999] HCA 66; (2000) 201 CLR 1 and Ebner v Ebner (2000) 201 CLR 337. Each came to the conclusion that, ultimately, an impartial observer would not have apprehended bias on the part of the decision-maker.

The application does not enjoy reasonable prospects of success were special leave granted. Special leave is accordingly refused and the applicant must pay the Minister’s costs.

AT 10.58 AM THE MATTER WAS CONCLUDED